J-S35007-19

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* Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

RUSSELL L. VANCE 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1223 EDA 2018

Appeal from the PCRA Order April 5, 2018

In the Court of Common Pleas of Philadelphia County Criminal Division at 

No(s): CP-51-CR-0216811-1985

BEFORE: OLSON, J., STABILE, J., and STRASSBURGER*, J.

MEMORANDUM BY OLSON, J.: FILED AUGUST 30, 2019

Appellant, Russell L. Vance, appeals pro se from the order entered on 

April 5, 2018, dismissing as untimely his ninth petition filed pursuant to the 

Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9646. We affirm.

We briefly summarize the facts and procedural history of this case as 

follows. On February 3, 1986, Appellant entered an open guilty plea to 

murder, generally, and possessing instruments of crime after shooting his 

landlord nine times in an apparent rental payment dispute. Following a 

degree-of-guilt hearing, Appellant was convicted of first-degree murder and 

sentenced to a mandatory sentence of life imprisonment without the 

possibility of parole. This Court affirmed Appellant’s judgment of sentence on 

August 1, 1988, and our Supreme Court denied allowance of appeal on March 

15, 1989. 
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Thereafter, Appellant filed eight PCRA petitions, none of which afforded 

him relief. In his eighth petition, Appellant argued that he was entitled to 

relief based upon the United States Supreme Court decision in Miller v. 

Alabama, 560 U.S. 460 (2012). We disagreed, however, finding that Miller

was inapplicable to Appellant. See Commonwealth v. Vance, 121 A.3d 

1136 (Pa. Super. 2015) (unpublished memorandum). Therein, we noted that 

“Miller applies to juveniles sentenced to life imprisonment without the 

possibility of parole[, but] Appellant was 39 [years old] and, therefore, not a 

minor when he committed his crime.” Id. at *6 (footnote omitted). 

On February 2, 2016, Appellant filed the instant pro se PCRA petition, 

his ninth, alleging that the United States Supreme Court decision in 

Montgomery v. Louisiana, 136 S.Ct. 718, 723 (2016), which applied Miller

retroactively to cases still pending on state collateral review, entitled him to 

relief. On May 30, 2017, the PCRA court sent Appellant notice pursuant to 

Pa.R.Crim.P. 907 that it intended to dismiss Appellant’s petition because he 

failed to validly invoke an exception to the PCRA’s one-year jurisdictional time 

bar. Moreover, the PCRA court noted that Appellant was not entitled to relief 

under Montgomery, for the same reason that he was not entitled to relief 

under Miller, because he was 39 years old at the time of the crimes. 

On June 19, 2017, Appellant filed a response to the PCRA court’s Rule 

907 notice. Therein, Appellant alleged that because he and the victim were 

both employed by the United States Postal Service, the trial court lacked 

jurisdiction over this case and Appellant should have been tried in federal 
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court. Appellant, however, did not seek leave of court to amend his PCRA 

petition to include this additional issue. Moreover, the response did not

elaborate on Appellant’s original claims raised pertaining to Montgomery and 

Miller. By order and opinion entered on April 5, 2018, the trial court 

dismissed Appellant’s PCRA petition as untimely. In the accompanying 

opinion, the PCRA court again noted that Miller and Montgomery were 

inapplicable to Appellant based upon his age at the time of the crime. The 

PCRA court further recognized that although the PCRA provides relief for a 

claim of lack of jurisdiction, such a claim is still subject to the PCRA’s one-year 

timeliness requirement and Appellant failed to invoke an exception to the time 

bar. Appellant filed a pro se notice of appeal on April 17, 2018. 

On appeal, Appellant presents the following issues, pro se, for our 

review:

I. Whether the [PCRA] court erred by denying Appellant’s PCRA 

petition alleging that the trial judge did not have jurisdiction over 

[Appellant’s original murder charges?]

II. Whether the [PCRA] court erred by denying Appellant’s PCRA 

petition because of untimeliness?

III. Whether trial counsel was ineffective by failing to challenge the 

jurisdiction of the trial court since both Appellant and the victim [] 

were full-time employees of the U.S. [P]ostal [S]ervice?

Appellant’s Pro Se Brief at 4 (cleaned up).

We review an order dismissing a petition under the PCRA in the 

light most favorable to the prevailing party at the PCRA level. This 

review is limited to the findings of the PCRA court and the evidence 

of record. We will not disturb a PCRA court's ruling if it is supported 

by evidence of record and is free of legal error. This Court may 
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affirm a PCRA court's decision on any grounds if the record 

supports it. Further, we grant great deference to the factual 

findings of the PCRA court and will not disturb those findings 

unless they have no support in the record. However, we afford no 

such deference to its legal conclusions. Where the petitioner 

raises questions of law, our standard of review is de novo and our 

scope of review plenary.

Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012) (internal 

citations omitted).

Initially, we note that, on appeal, Appellant has abandoned his original

claim pertaining to Miller and Montgomery and, thus, we find that issue 

waived. Our Rules of Appellate Procedure state unequivocally that each 

question an appellant raises on appeal is to be supported by discussion with 

reference to the record and analysis of pertinent authority. See Pa.R.A.P. 

2119. Appellate arguments which fail to adhere to our rules may be 

considered waived, and arguments which are not appropriately developed are

waived. See Commonwealth v. Murchinson, 899 A.2d 1159, 1160 (Pa. 

Super. 2006) (deeming the appellant's claims waived under Rule 2119(a) 

because he did not develop meaningful argument with specific references to 

relevant caselaw and to the record to support his claims); see also 

Commonwealth v. Miller, 721 A.2d 1121, 1124 (Pa. Super. 1998) (“Failure 

to brief an issue is to waive it, as such omission impedes our ability to address 

the issue on appeal.”). Thus, the original issue presented in Appellant’s most 

recent PCRA petition is waived.

Next, we recognize that all of Appellant’s appellate issues, as presented, 

center on his claim that the Philadelphia Court of Common Pleas lacked 
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jurisdiction over his 1986 criminal case because both he and the victim were

federal employees at the time of the crime. Thus, Appellant posits that he 

should have been tried in federal court. Appellant raised this issue initially in 

his response to the PCRA court’s notice of intent to dismiss the PCRA petition 

under Pa.R.Crim.P. 907. He did not seek leave to amend the current PCRA 

petition. 

This Court previously determined that issues not included in an original 

PCRA petition or a court-approved amended PCRA petition are deemed 

waived. See Commonwealth v. Ousley, 21 A.3d 1238, 1242 (Pa. Super. 

2011) (“It is well-settled that issues not raised in a PCRA petition cannot be 

considered on appeal.”) We stated:

The purpose behind a Rule 907 pre-dismissal notice is to allow a 

petitioner an opportunity to seek leave to amend his petition and 

correct any material defects, see Commonwealth v. Williams, 

782 A.2d 517, 526 (Pa. 2001), the ultimate goal being to permit 

merits review by the PCRA court of potentially arguable claims. 

The response is an opportunity for a petitioner and/or his counsel 

to object to the dismissal and alert the PCRA court of a perceived 

error, permitting the court to “discern the potential for 

amendment.” Id. at 527. The response is not itself a petition and 

the law still requires leave of court to submit an amended petition. 

See Pa.R.Crim.P. 905(A).

Commonwealth v. Rykard, 55 A.3d 1177, 1189 (Pa. Super. 2012). In order 

to aver a new PCRA claim, as Appellant has done here, the petitioner must 

seek leave to amend his PCRA petition. Id. at 1192. When a petitioner has 

“not sought permission to amend [a] petition to raise [] new claims, the PCRA 

court [is] not required to address the issues [raised in response to a Rule 907 
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notice]. Id.; see also Commonwealth v. Mason, 130 A.3d 601, 627, 634 

(Pa. 2015) (“The petitioner bears the onus of informing the PCRA court that 

he or she seeks to add claims through an amended petition, and, in response, 

the court shall freely grant leave to amend where doing so achieves 

substantial justice consistent with the dictates of Pa.R.Crim.P. 905(A).”). 

Because Appellant did not seek leave to amend his PCRA petition to include 

his wholly unrelated federal jurisdiction claim, the PCRA court was under no 

obligation to review the merits of this new issue. See Mason, 130 A.3d at 

621 n.19; Rykard, 55 A.3d at 1189 n.8. Accordingly, Appellant is not entitled 

to relief on this claim.1

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/30/19

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1

 Moreover, as the PCRA court concluded, Appellant did not invoke a 

timeliness exception before the PCRA court. “The timeliness exception set 

forth in Section 9545(b)(1)(ii) requires a petitioner to demonstrate he did not 

know the facts upon which he based his petition and could not have learned 

those facts earlier by the exercise of due diligence.” Commonwealth v. 

Brown, 111 A.3d 171, 176 (Pa. Super. 2015). Here, the fact that Appellant 

and the victim were both federal employees was either known at the time of 

trial or could have been learned through the exercise of due diligence many 

years, even decades, earlier.